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2002 DIGILAW 1007 (JHR)

Budhan Singh v. State of Bihar

2002-09-11

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J.- This appeal has been preferred by the appellants named above against the judgment dated 14.12.1989 in Sessions Trial No. 442 of 1983 passed by Shri Satyendra Singh, 4th Additional Sessions Judge, Palamau at Daltonganj whereby and whereunder all the appellants were found guilty for the offence punishable under Section 302/34 of the Indian Penal Code and they were convicted and sentenced to undergo R.1. for life. 2. The prosecution case has arisen on the basis of fardbeyan (Exhibit-1) of P.W.2, Surji Devi recorded by S.1. R.K,Mishra of Latehar P.S.on 7.3.1978 at 7.00 hours at village-Kumandih, P.S.-Latehar, District Palamau regarding the occurrence which is said to have been taken place on 6.3.1978 at 14.00 hours in the cow-shed of the Animal Husbandry Department in the said village. 3. The prosecution case, in brief, is that her father, Komal Mochi works in the cow-shed of the Animal Husbandry Department situate in village-Kumandih and she was in the cow-shed at about 14.00 hours on the date of the occurrence and her father was not present there and Jamuna Sah came running from the south raising alarms to save his life and the informant came out of the said cow-shed and in the meantime Jamuna Sah aforesaid took shelter in the said cow-shed. All the appellants also entered into the said cow-shed chasing and abusing Jamuna Sah aforesaid and appellant, Budhan Singh and Pati Oraon were armed with Lathi and they were uttering to assault Jamuna Sah as he creates hinderance in their sale of liquor and thereafter appellant, Budhan Singh and Amerika Singh started assaulting Jamuna Sah with fist and slap and the appellant, Giriwar Dubey and Churki Oraon caught Jamuna Sah and thereafter appellant, Amerika Singh gave a blow by fist on the neck of Jamuna Sah and he fell down and thereafter appellant, Pati Oraon stretched his leg and they fled away from there and while fleeing away from there they abused the informant and intimidated her to be done to death if she tells about the occurrence to anyone. It is alleged that the informant also fled away from there and went to the market and informed about the occurrence to the wife (P.W.3) of Jamuna Sah aforesaid and also disclosed the names of the assailants and thereafter the informant returned in the company of P.W.3, the wife of Jamuna Sah in the said cow-shed and found Jamuna Sah dead. Half an hour thereafter Gultan, the village Choukidar came there. It is also alleged that Jamuna Sah, deceased used to sale liquor in the market as well as in the village-Barkadih against the wish of appellant, Budhan Singh due to this all the appellants have assaulted the deceased as a result of which Jamuna Sah has died. It is also alleged that all the appellants except Budhan Singh works as coolie in the vehicle of appellant Budhan Singh and appellant Amerika Singh, who is brother-in-law of Budhan Singh sales liquor for appellant Budhan Singh, living with him. 4. The appellants have pleaded not guilty to the charge levelled against them and they claim themselves to be innocent and to have committed no offence that they have been falsely implicated in this case and the deceased might have been killed by someone somewhere when he had committed mischief in a drunken state. 5. While assailing the impugned judgment of the learned court below it has been submitted by the learned counsel for the appellants that the learned court below did not consider the evidence on the record meticulously in proper perspective and has gravely erred in finding of the appellants guilty for the offence under Section 302/34 I.P.C. It has also been submitted that there is no iota of evidence on the record even to connect or implicate the appellants, Ambika Singh in the occurrence in question as even in the fardbeyan, Exhibit-1, the informant has not named appellant, Ambika Singh as a participant in the occurrence, rather, the name of Arnerika Singh figures therein as participant in the alleged occurrence and appellant, Amerika Singh has not been put on test identification parade In the course of investigation for ascertaining his identity as a participant in the occurrence. It has also been submitted that P.W.2 in her evidence on oath does not whisper regarding Giriwar Dubey as a participant in the occurrence in question rather she names one Giriwar Ra]put as a person participating in the occurrence and the identity of Giriwar Dubey stands disputed as per the prosecution case in the occurrence which equally makes the participation of appellant Giriwar Dubey in the occurrerce doubtful. It has further been contended that P.W.2, Surji Devi, the informant of this case, who claims herself to be the solitary eyewitness of the occurrence cannot be termed as eye-witness in this case at all in view of the fact that she has stated to the I.O. to have fled away from the alleged place of occurrence after scaling the wall of cowshed and furthermore there are material contradictions and inconsistencies in her evidence regarding the manner of occurrence which clearly belies the prosecution case as well as P.W.2 being the eye-witness of the alleged occurrence. It has also been submitted that the medical witness on the record also does not support the prosecution case regarding the manner of occurrence as the existence of a large number of bruises on the dead body of the deceased can never be caused by assault by fist and slap. It has further been submitted that the appellant, Churki Oraon is 70 years old and there is no allegation against him regarding any assault on the deceased by him in the fardbeyan and it is also improbable that he is fit ever to chase the deceased and in this view of the matter his conviction under Section 302 read with Section 34 of the Indian Penal Code is illegal and incorrect and also in view of the circumstances emanating on the record the entire prosecution case is highly improbable. It has also been submitted that the I.O. has not taken oath in this case for the prosecution which has caused serious prejudice to the appellants in the facts and circumstances of the case and the evidence of P.W.2 regarding her fleeing away from the place of occurrence after scaling the boundary wall of the cow-shed could not be controverted due to the non-examination of the I.O. Lastly it has been contended that the solitary testimony of P.W.2 uncorroborated in material particulars by any independent, natural and competent witness of the occurrence and replete with contradictions and inconsistencies therein is fit to be brushed aside. 6. The learned A.P.P. has submitted that place of occurrence of this case is inside the cow-shed of the Animal Husbandry Department in village-Kumandih where the deceased had taken shelter on being chased by the appellants and assault on the deceased in the manner as alleged has taken place in the said cow-shed in presence of P.W.2 who have materially supported the prosecution case and in view of the evidence of P.W.2 the finding of the guilt of the appellants by the learned court below does not suffer with any illegality. 7. Eight witnesses have been examined on behalf of the prosecution. P.W.1 and 8 are formal witnesses, who have proved the fardbeyan (Exhibit-1) and the formal F.I.R. (Exhibit-3) respectively. P.W.5 has been tendered and P.W.4 is a hearsay witness, who has turned hostile in this case. P.W.6, Madan Sah, resident of Latehar, which is at a distance of 10 or 12 miles from village-Kumandih, is also a hearsay witness and claims to have seen the appellant, Amerika Singh fleeing away in the Kumandih Market. P.W.3, the widow of the deceased in this case is also a hearsay witness and learnt about the occurrence by P.W.2, the informant in the Kumandih Market soon after the occurrence. P.W.2, Surji Devi is the informant of this case and he is alleged to be the solitary eye-witness of the alleged occurrence. P.W. 7 is Dr., Baidhya Nath Prasad Jaishwal, who has conducted the post-mortem examination on the dead body of the deceased and the post mortem report is Exhibit-2 in this case. The I.O. has not taken oath in this case for the reasons best known to the prosecution. One Md. Kalim Khan has been examined as D.W.1 in this case. 8. The I.O. has not taken oath in this case for the reasons best known to the prosecution. One Md. Kalim Khan has been examined as D.W.1 in this case. 8. In view of oral and documentary evidence on the record the learned court below has found the appellants guilty for the offence under Section 302/34 of the Indian Penal Code and has convicted and sentenced them as stated above. 9. According the prosecution case as averred in the fardbeyan (Exhibit-1) of P.W.2, Surji Devi it is alleged that Bhudhan Singh and Amerika Singh assaulted the deceased, Jamuna Sah by fist and slap and appellant, Giriwar Dubey and Churki Oraon had caught the deceased and appellant, Amerika Singh gave a blow by fist on the neck of the deceased as a result of which the deceased fell down and thereafter appellant, Pati Oraon stretched his leg and thereafter they all have fled away from the place of occurrence. According to the averment made in the fardbeyan, the assault on the person of the deceased has been made by fist and slap only though appellants, Bhudhan Singh and Pati Oraon are said to be armed with Lathi but there is no allegation in the fardbeyan that any assault on the deceased was made by Lathi. P.W.7, who has conducted the post mortem examination on the dead body of the deceased has deposed to have found the following ante mortem injury on his person ;- (i) One bruise 4" x 3" on the left side of scalp. (ii) One bruise 3" x 3" on the left side of face. (iii) One bruise 5" x 4" on the right side of scalp. (iv) One Bruise 2" x 2" on the occiput. (v) One bruise 3" x 2" on the right side of the face. (vi) One bruise 2" x 2" on the forehead. (vii) One bruise 3" x 2" on the left side of neck. (viii) One bruise 3" x 3" on the right side of neck. (ix) One bruise 5" x 5" on the left side of chest near anilla. (x) One bruise"'1" x 1" on the nose. The medical witness has further deposed that on dissection he has found echymosis under the above injury sites and on opening the skull the meninges were found congested and blood clots were found there and brain was congested with blood clots. (x) One bruise"'1" x 1" on the nose. The medical witness has further deposed that on dissection he has found echymosis under the above injury sites and on opening the skull the meninges were found congested and blood clots were found there and brain was congested with blood clots. The medical witness has also further deposed that larynx and trachea contained blood clot in their lumen and their mucosae were congested. The medical witness has also further deposed that the aforesaid injury has been caused by hard and blunt substance and death was due to haemorrhage, shock and asphyxia caused by the above injuries. P.W.2, the solitary eye-witness of the alleged occurrence has deposed in para-1 of her evidence that appellant Bhudhan Singh and Pati Oraon had caught the deceased and appellant, Amerika Singh, Giriwar Rajput and Churki Oraon assaulted the deceased by fist and slap and appellant, Amerika Singh gave a blow by fist on the neck of the deceased as a result of which he fell down. There is no evidence on the record that assault on the deceased has been made by Lathi and there is also no averment in the fardbeyan of the informant about assault by Lathi. P.W.2, the informant has specifically deposed regarding one blow by fist on the neck of the deceased and further she has not deposed specifically regarding the assault by fist and slap on the specific part of the body of the deceased by the appellant, Amerika Singh, Giriwar Rajput and Churki Oraon. The existence of 10 bruises on the different parts of the body as deposed to have been found by the medical witness in the normal course can never be caused by assault by fist and slap. Therefore, the existence of the injuries i.e. 10 ,bruises on the dead body of the deceased is definitely not consistent with the manner of the prosecution case as alleged to have been caused by assault by fist and slap. In this view of the matter, the existence of the injuries as deposed to have been found by the medical witness on the dead body of the deceased is surrounded with mystery and casts a cloud of suspicion to the very credibility of the warp and woof of the prosecution case. 10. In this view of the matter, the existence of the injuries as deposed to have been found by the medical witness on the dead body of the deceased is surrounded with mystery and casts a cloud of suspicion to the very credibility of the warp and woof of the prosecution case. 10. Let us now scan the evidence of P.W.2, the informant who is alleged to be the solitary eye-witness of the occurrence. As a general rule a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of number of other witnesses of indifferent character. Where the prosecution rests on the sole testimony of an eye witness, the same should be wholly reliable. That does not mean that each and every type of infirmity or minor discrepancies would render the evidence of such witness unreliable. The test to judge the credibility of a witness is the intrinsic quality and worth of his evidence independent of other evidence and if such evidence measures up to the satisfaction of the Court's it can itself form the basis of conviction. According to the prosecution case, the residence of the father of P.W2 is in the campus of the said cow-shed in which her father besides her two younger brothers, and one sister resides therein and at the time of the alleged occurrence her father had gone somewhere and her one brother had gone with cattle for grazing and her other brother had gone to the school and she was in the cow-shed besides her three years old sister in her residence and at that time she was dressing her hair. The campus of the said cowshed has boundary wall all around. The residence of the father of P.W2 has separate existence neary the cow-shed. The outer door of the said cow-shed faces west and inside door of that cow-shed faces north. According to P.W.2, the deceased has entered into the cow-shed from the western door. In Para-11 of her evidence she has deposed that the place of assault in the cow-shed is a distance of 50 yards from the place where she was dressing her hair and she had gone to the door of the cow-shed after the assault was over. According to P.W.2, the deceased has entered into the cow-shed from the western door. In Para-11 of her evidence she has deposed that the place of assault in the cow-shed is a distance of 50 yards from the place where she was dressing her hair and she had gone to the door of the cow-shed after the assault was over. In Para-12 of her evidence she has denied the fact that she has not fled away by scaling the boundary wall of the cow-shed when the appellants had come to the said cow-shed. It is pertinent to mention here that this evidence as deposed by P.W.2 could not be controverted due to non-examination of the I.O. in this case whereas the statement under Section 161 Cr.P.C. recorded by I.O. gives a picture of fleeing away of P.W.2 from the place of occurrence by scaling the wall of cow-shed on arrival of the appellants. The non-examination of the I.O. has definitely caused a serious prejudice to the appellants in respect thereof as they stand debarred of eliciting the said fact controverting the testimony of P.W.2 in the cross-examination of the I.O. The fleeing away of P.W.2 by scaling the boundary wall of the cow-shed at the relevant time cast a cloud of suspicion regarding P.W.2 being an eye-witness of the occurrence. Furthermore, the testimony of P.W.2 materially contradicts the prosecution case regarding the manner of occurrence as averred in the fardbeyan (Exhibit-1). According to the prosecution case, appellants, Bhudhan Singh and Amerika Singh were assaulting the deceased and Giriwar Dubey and Churki Oraon had caught the deceased and thereafter appellant, Amerika Singh gave a 7blow on the neck 01 the deceased and Pati: Oraon had stretched the leg of the deceased when he had fallen on the ground. P.W.2 in her evidence on oath contradicts the prosecution case as stated above and she has deposed that appellants, Bhudhan Singh and Pati Oraon had caught the deceased and appellant, Amerika Singh, Giriwar Dubey, and Churki Oraon have assaulted the deceased by fist and slap. This material contradiction in the testimony of P.W.2 clearly establishes the fact that she has not seen the assault on the deceased perpetrated by the appellants in the manner as alleged in the fardbeyan (Ext.-1). This material contradiction in the testimony of P.W.2 clearly establishes the fact that she has not seen the assault on the deceased perpetrated by the appellants in the manner as alleged in the fardbeyan (Ext.-1). Furthermore, P.W2 does not appear to have any prior acquaintance with the appellants as well as with the deceased to identify them as well as to know them by their names. Firstly, she names appellant, Ambika Singh as Amerika Singh and Giriwar Dubey as Giriwar Rajput which makes their presence as well as their participation in the occurrence suspicious. The house of the deceased is in village, Barkadih which is at a distance of 2 miles from the cow-shed vide Para-10 of P.W2. She has deposed in Para-11 that she has never gone to village Barkadih and deceased had never come to his house prior to the occurrence. Therefore, there is a big question mark regarding P.W.2 going to the Kumandih Market and reporting about the occurrence to P.W.3, the widow of the deceased. P.W.2, the informant cannot be said to be the ocular witness of the occurrence in view of inherent inconsistencies and material contradictions appearing in her testimony and she cannot be termed as truthful and reliable witness in the facts and circumstances of the case and as such it is quite unsafe to rely on her testimony. There is no legal evidence at all on the record to establish the fact that the cow-shed is the place of occurrence of this case in the absence of objective findings of the I.O. due to his non-examination in this case. There is also no legal evidence on the record to prove the genesis of the occurrence. The evidence of P.W.6, Madan Sah seeing appellant Amerika Singh fleeing in the Kumandih Market does not connect him at all with the occurrence in question, in view of the fact that P.W.6, Madan Sah is the resident of Latehar which is at a distance of 10 to 12 kilometres from Kumandih and he has also no probable reason to identify appellant, Amerika Singh as he was not acquainted with him from before. There is also no probable reason for P.W.2 . the informant to come to the Kumandih Market to inform P.W.3 regarding the occurrence in question. There is also no probable reason for P.W.2 . the informant to come to the Kumandih Market to inform P.W.3 regarding the occurrence in question. Therefore, in the facts and circumstances of the case, I have no hesitation to come to the conclusion that the testimony of P.W.2 is not at all reliable as an eye-witness of the occurrence and her testimony is fit to be brushed aside. The learned court below did not properly and meticulously scrutinize the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellants and as such the impugned judgment is unsustainable in the facts and circumstances of the case. 11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is hereby set aside. The appellants are not found guilty of the charge levelled against them and they are accordingly acquitted and discharged from the liability of their bail bonds. Lakshman Uraan, J.-I agree.